Why DeVos’s plan to delay Obama-era rule on minority special-education students is a mistake

President Trump and Education Secretary Betsy DeVos, listen to Johnny Taylor, Jr., as he is announced as the new chairman of the Presidents Board of Advisors on Historically Black Colleges and Universities during an event in the Roosevelt Room at the White House in Washington, D.C. on Tuesday, Feb. 27, 2018. (Photo by Jabin Botsford/The Washington Post)

President Trump’s Education Department is on its way to delaying by two years the implementation of an Obama-era rule that is intended to address the disparities in the treatment of students of color with disabilities.

The rule amended regulations that are part of the Individuals With Disabilities Education Act (IDEA). John King, the U.S. education secretary in December 2016, said then:

“Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers. Children of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker.”

Current Education Secretary Betsy Devos is not a fan of the rule, and last month, the Education Department published a notice in the Federal Register seeking public comment on a proposal to delay the rule’s implementation, which was supposed to start in the 2018-2019 school year. The notice says the department wants to make this move to ensure the rule’s “effectiveness” can be ensured.

The “Equity in IDEA” rule is just one of a number of Obama-era regulations aimed at protecting the rights of students that the Trump administration has either rolled back or expressed interest in doing so.

Education Secretary Betsy DeVos is moving to impose a two-year delay on the Equity in IDEA rules, which would have gone into effect in July 2018. The delay in implementation will, at best, promote the status quo in special education — which has been characterized by decades of racialized outcomes in the placement, classification, and/or discipline of students with disabilities — or will exacerbate these inequities.

The department stated its reasons for the proposed delay in the Federal Register on Feb. 27, 2018, but minimized the civil-rights issue that is central to disproportionality in special education.

Students of color — primarily Native American, black, and Latino students — have historically been marginalized in the United State education system through questionable special education placement, classification, and/or disciplinary outcomes as compared to their white counterparts.

Minimizing the civil-rights issue that is at the heart of disproportionality is a mistake.

“T]he Department lacks the statutory authority under IDEA to require States to use a standard methodology [to determine significant disproportionality], pointing out as well that the Department’s previous position, adopted in the 2006 regulations implementing the 2004 amendments to IDEA, was that States are in the best position to evaluate factors affecting determinations of significant disproportionality.

While the logic surrounding state rights is deeply tied to the educational federalism that influences our educational system, it does not engage with the gravity of the civil-rights concerns that are associated with racially disproportionate outcomes.

It is not a coincidence that racial disparities in special education mirror broader educational opportunity gaps. The history, tenor, and reality of race relations in the United States infiltrates each school building and classroom of this nation. And it manifests, whether explicitly or not, in our day-to-day educational practices.

Denying this reality by not labeling disproportionality as a civil-rights concern does a disservice to our youth. And a focus on preserving states’ rights fails to recognize how the historical conditions and realities of schooling in the United States, and the resulting interactional and structural opportunity gaps, have systematically disadvantaged Native American, black, and Latino students.

Relying upon a racially neutral policy approach that preserves state rights will not sufficiently counter these inequities.

And yes, while there are qualitative differences between the educational climate, context, and needs of students in rural Montana, versus Atlanta, versus Philadelphia, versus Seattle, versus Tucson — to name a few — it is also a fact that each of these locales is linked to a broader American history characterized by a legacy of racial discrimination and institutional racism that has severely limited educational access and opportunity to primarily Native American, Black, and Latinx students in schools across the United States.

The state rights argument also defies the findings and suggestions of both policy and research reports which have shown that when states have latitude to decide upon how they will identify and address disproportionality, the issue is not resolved and it seems to “exist” in some states more so than others.

The report further said that the way “some states defined overrepresentation made it unlikely that any districts would be identified” within these states. This is perplexing.

Do the findings in the GAO report imply that only some states have issues with racial inequities in special education and others do not? This is hard to believe. Even harder to believe, the Federal Register notice alludes to these findings, but it still positions states’ rights as a valid reason to delay the regulations.

Another reason provided in the Federal Register that justifies the delay points to a tension between the individualized spirit of IDEA and the call for an aggregate measure that identifies racially disproportionate outcomes. The Federal Register notice states:

The standard methodology [for significant disproportionality] improperly looks at group outcomes through statistical measures rather than focusing on what is at the foundation of IDEA, namely the needs of each individual child and on the appropriateness of individual identifications, placements, or discipline.

Essentially, the language reads as if tracking an aggregate outcome (such as disproportionality) is contradictory to the spirit of IDEA, which is focused on providing a continuum of educational services to students with disabilities through their respective Individualized Education Programs (IEPs).

I have two critiques of this reasoning which highlight, again, how civil-rights concerns do not appear to be at the forefront of any decision to delay the Equity in IDEA rules.

IDEA is governed by both IDEA statues and the logic of the 14th Amendment. These are both sources of federal rights that must be interpreted and implemented in schools and districts across the United States. Unfortunately though, although both race and disability are protected classes under the U.S. Constitution, only “race” is subject to strict scrutiny. Disability status is not.

Thus, remedying a problem such as disproportionality, which exists at the intersection of disability and race, is incredibly difficult to achieve under the current legal framework. It also highlights a very complex problem that has serious equity implications.

As state policy monitoring [of disproportionality] has been found to either inadequately define or find evidence of significant disproportionality across states, potential claimants have relied on litigation to show intentional discrimination. Plaintiffs, however, face an uphill battle in using school- and district-level placement data to prove intentional discrimination, even when policy monitoring under IDEA has led to a finding that significant disproportionality by race or ethnicity in special education and related services has occurred within the plaintiff’s district.

Essentially, it is very difficult to prove that educators, a school, and/or school district has/had an explicit intent to discriminate when disproportionate outcomes are present. And it is especially true when/if schools and school districts are able to show compliance with IDEA statutes.

This leads to my second point, and the most consequential one yet in regards to civil-rights protections and IDEA. Arguably, when a school or school district can show that they have complied with IDEA and that there is no evidence of explicit discrimination, then a racialized outcome such as disproportionality cannot be the fault of educators, biases and beliefs, organizational systems, and/or historical and contextual conditions.

This reasoning theoretically allows for unequal educational outcomes to be blamed on students and families because, under the guise of compliance with IDEA, educators are not explicitly discriminating against students of color labeled with a disability, even if racial inequities are present.

Essentially, a student’s lack of success in school becomes their own fault, an individual issue, rather than one that is related to broader systemic factors.

Thus, arguing that a focus on a group-based outcome is counter to the individualized spirit of IDEA further reifies a deficit-based logic that holds students accountable for school failure, and no one else. This is conceptually dangerous.

Didn’t civil-rights legal strategies and the logic found in Brown vs. Board of Education influence the legislative development of IDEA?Yes.

Wasn’t the disability rights movement a collective effort aimed at assuring that all students have equal access and opportunity to high quality educational services? Yes.

If we sideline a collective concern like racial disproportionality, isn’t this contrary to the spirit of IDEA? Yes, because the collective spirit of the legislation dissolves into an “atomization of needs politics” — as noted in this 2009 article — that upholds individual concerns over collective ones.

In summary, we need to identify educational policy and practice remedies that seriously contend with the historical and social contexts that define the United States education system. If we don’t, we exhibit a concerning historical amnesia that denies the salience of race in American society and on educational outcomes.

This amnesia also promotes a form of complicit compliance with IDEA whereby we are able to comply with educational systems that, with very little effort on our part, continuously reproduce racialized outcomes without having to face any consequences.

Because of this, it is not in the best interests of students across this country to be educated in schools and school districts that are not using a standardized measure to track racialized outcomes in special education.